Characterization
Private International Law
Introduction
Characterization means Classification of a given factual
Situation
Allocation of the questions raised by the factual situation
before the court to its correct legal category.
The issue of characterization is one of the most
complicated problems of private international law –
Complexity owing to the Intersection of the rules of
various countries in regard to the Private International Law
Three Stages
A) The Complexity of a Problem / Methodology involved in
Characterization
B) The Theoretical Statements explaining characterization
C) The Process of Characterization
Nature of the problem of
Characterization In the Conflicts
of Law
Different Legal System attach to the same legal term
different meanings.
Different Legal System may Contain ideas and concepts
completely unknown to one another.
Different legal System apply different legal principles for
the solution of problems which, in general terms are of
common Nature.
Theories of Characterization
Characterization should be Governed by the Lex fori
Characterization should be made under lex Cause
It Should be made under two Stages: Primary
Characterization based on Lex Fori
Secondary Characterization Based on Lex Cause .
Characterization Should be based comparative law and
analytical Jurisprudence
Based on Lex Fori
Characterization on the basis of lex Fori was first
propounded in 1891 by German jurist, Franz Khan
In 1897 it is again Discovered by Chief Modern exponent
Prof. and Writer Bartin.
He come on the conclusion that there are no such rules and
there in all the cases characterization is to be made on the
basis of the lex Fori
Two Rules of Bartin
Bartin gives two rules to solve the problem of Characterization
A) A court is dealing with the question of characterization, must
invariably apply and decide the issue on the basis of internal Law.
When Court is called upon to characterize a rule of foreign Law
an institution, a legal relationship or some factual situation of a
foreign Country, it must be determine it on the basis of
Characterization made in its internal Law. In case no such
corresponding rule, Legal Relationships or institutions exists in
the domestic law,, it should be determined on the basis of the
closest analogy available in its Internal Laws
Or may Adopt Subsidiary Characterization as might be
appropriate or suggested by the law
Two Exception…
Whether the property is movable pr immovable is to be
characterized on the basis of the lex situs; this is
because he says this rule would best sub serve the
security of transaction affecting property. This Should
nor means, he asserts, that the law of situs is given
sovereign authority
When a contract is entered into by correspondence the
governing law would be determined by determined by
reference to that the law which postpone its formation
Longest.
Characterization on the basis of
lex causea
Despagnet and wolff were the main proponents of this
theory
According to Wolff “….. Every legal rule takes its
classification from the legal system to which it belongs”
Despegnet also suggested the characterization to the lex
causea
A court deciding upon a case having a foreign element
will have to take the classification of the rule in the
foreign law without looking at the classification of the
rule in that foreign legal system completely.
Criticism
It is a circular argument to state that the foreign law governs the
process of characterization before the process of characterization
has led to the selection of the appropriate legal system.
The failure to observe the distinction between the true problem
of characterization and the subsequent problem of interpretation
of the foreign law has led to the erroneous conclusion that
characterization is governed by the lex causae.
If there are two potentially applicable foreign laws, why should
the forum adopt the characterization of one rather than the
other? And vice versa, reference to a foreign law can lead to a
negative conflict, which is particularly dangerous because of the
absurdity of its result.
Characterization by analytical
jurisprudence
Writers such as Rabel believe that characterization
should be governed by the rules of analytical
jurisprudence and comparative law. That is, the judge
should use the scope of the law to determine and
compare the law of the countries involved and choose
the one which will dispense justice more fairly. The
argument in favor of this approach is that judicial
technique in conflict cases must be more international
and less insular than in domestic cases.
Arguments
There are very few principles of analytical
jurisprudence and comparative law that are of universal
application. As KAHN-FREUND rightly opined,
international agreement on analytical concept is a
utopia.
While the study of comparative law may reveal
differences between domestic laws, it is hardly capable
of resolving them. For example, comparative law may
reveal that parental consent to marry may sometimes
affect formalities or the capacity to marry. But how does
it determine how these matters may be characterized.
Theory of Two Fold
Characterization
Cheshire and Dr. Rebertson are the main proponents
of this theory
They maintain that problem of characterization can
best solved by dividing the process of characterization
in to
Primary Characterization ( For the Lex Fori)
Secondary Characterization ( Lex Causea )
According to Robertoson
“ The Various legal categories, into one of the which the
judge must decide that the question falls before he can
select his conflicts rule, must be wider than the
categories of the internal Law, because otherwise the
judge in a conflicts question will be unable the make
provision for any rule or institution of foreign law
which does not find its counterpart in his own internal
law, and thus one of the reason for the existence of the
science of conflicts of laws will be defeated.
Contd.,
According to him , the secondary characterization is the
“delimitation and application of the proper law.
According to Cheshire says that the difference between
the primary and secondary characterization is that the
former precedes and latter follows.
This theory maintain the secondary characterization is
governed by the lex Causea.
THE MODERN APPROACH
Since the characterization system and the choice of law
rule were operating in an inflexible way, the solution
has been to allow the growth of judicial discretion
within both sides of the system. Hence, most legal
systems have opted for the PROPER LAW
APPROACH i.e. the identification and application of
the law that has the closest connection with the cause(s)
of action. In theory, this flexibility will preserve an
international outlook and multilateral approach by the
courts and in jurisdictions that have adopted this
approach, the results are not encouraging.
Process of Characterization
Three Stages
A) Characterization of Factual
Situation
B) Characterization of the
Connecting Factor
C) Classification of rule of Law
